Michael Abramowicz & John F. Duffy
92 Geo. Wash. L. Rev. 1391
A defining feature of the past two and a half centuries has been the extraordinary and unprecedented velocity of technological change. The rush of new technologies has affected every area of society including the law. Legal systems, even while promoting technological progress through legal structures such as intellectual property, have struggled to adapt to the enormous changes wrought by human creativity. One persistent question—indeed an issue of ever-growing importance as progress accelerates—is how to apply and adapt the law of the past to the new realities of the present and the future.
This Article approaches that question with insight drawn from an emerging and important doctrine in the law governing federal statutory interpretation—the “major questions doctrine.” That doctrine requires existing statutes delegating power to an administrative agency to be interpreted as simply not addressing—and thus not authorizing agency action on—major economic and social issues unless the statutory language is relatively clear. The major questions doctrine thus prevents preexisting statutes from being viewed as controlling authority when the inference is weak that the ratifying Congress meant to make any decision on the issue, including a decision to delegate the issue to an administrative agency.
This Article argues that courts should adopt a similar posture when preexisting sources of law, including both statutes and caselaw, are invoked as controlling major new technological questions. For example, courts should be skeptical that an authorization for cryptocurrency regulation lies in a generally-worded statute enacted three-quarters of a century before the rise of cryptocurrencies and their markets. Courts should also doubt that authoritative rules for artificial intelligence can be gleaned from the caselaw and statutes governing such issues as libel and copyright. Such skepticism helpfully allows statutory and common law-makers to develop much-needed experience with nascent technologies before making important regulatory decisions and restrains the dead hand of the past from thoughtlessly tyrannizing the present and future.
